Citation Nr: 0512116
Decision Date: 05/02/05 Archive Date: 05/18/05
DOCKET NO. 03-35 222 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Whether the Department of Veterans Affairs accurately
calculated past-due benefits.
REPRESENTATION
Appellant represented by: Jeffrey J. Wood, Attorney
ATTORNEY FOR THE BOARD
Robert A. Leaf, Counsel
INTRODUCTION
The veteran had active military service from July 1969 to
October 1983.
The Department of Veterans Affairs (VA) Regional Office (RO)
in Buffalo, New York, issued a decision in January 1999
increasing the rating for the veteran's service-connected
post-traumatic stress disorder (PTSD) from 30 to 70 percent
as of November 7, 1996. The RO adjusted his benefits
payments to reflect the higher level of disability
compensation he would receive and sent him a letter in
February 1999 apprising him of this change.
The Board of Veterans' Appeals (Board) subsequently issued a
decision in July 1999 that denied a rating higher than 30
percent for the PTSD prior to November 7, 1996, and which
also denied a rating higher than 70 percent for this
condition from that date forward.
The Board issued another decision in August 1999 denying
payment of attorney fees out of past-due benefits.
And in September 2000, the Board issued yet another decision
addressing what evaluation was warranted for the PTSD from
October 12, 1990. According to the Conclusions of Law in
that decision, the Board determined: 1) The schedular
criteria for a rating in excess of 30 percent for the period
October 12, 1990 to May 26, 1998 had not been met; 2) The
schedular criteria for a 70 percent evaluation had been met,
but only from May 27 to May 31, 1998; and 3) The schedular
criteria for a 100 percent rating had been met for the period
from June 1, 1998 and thereafter.
The veteran appealed the Board's September 2000 decision to
the United States Court of Appeals for Veterans Claims
(Court). In August 2002, the Court issued an order based on
a joint motion to terminate the appeal on terms set forth in
a stipulation agreement between the parties. The stipulated
agreement provided that VA would restore a 70 percent rating
for the PTSD for the period from November 7, 1996 through May
31, 1998. Actually, a 70 percent rating was restored for the
period through May 26, 1998, since a 70 percent rating
already had been granted for the period from May 27, 1998 to
May 31, 1998.
The current appeal to the Board arose from an August 2002 RO
rating decision that implemented the terms of the above-
mentioned stipulation agreement.
The RO provided the veteran an audit of his account in light
of the restoration of the 70 percent evaluation for his PTSD
from November 7, 1996 through May 26, 1998. He timely
appealed the RO's calculation of the amount of past-due
benefits to which he was entitled, following restoration of
the 70 percent evaluation.
In expressing his dissatisfaction with the calculated amount
to which the RO found him entitled, the veteran, through his
attorney, also stated his objection to the RO's determination
regarding an overpayment of compensation benefits.
His point of contention concerned a debt reportedly in the
amount of $17,531.20, created by the Board's September 2000
decision that assigned a 30 percent evaluation for the PTSD,
rather than a 70 percent evaluation, for the period from
November 7, 1996 to May 26, 1998 - although that decision
was later terminated by the Court's order. So, in essence,
the veteran is questioning the validity of the debt. This
issue, however, has not been developed for appellate
consideration by the Board; indeed, it seems to be a moot
point now, given the Court's order. In any event, it is
referred to the RO for any action deemed appropriate.
Additionally, the claims file contains an audit of the
veteran's account prepared in July 2003. The report of the
audit lists the benefits due in relation to those paid
for the period from November 1990 through June 2003. The RO
determined the veteran had been overpaid in the amount of
$6,811.80. Through his attorney, he disagreed with the
results of the audit, alleging the overpayment was created
based solely on administrative error by VA. The validity of
that particular debt also has not been developed for
appellate consideration by the Board. See, e.g., Schaper v.
Derwinski, 1 Vet. App. 430, 437 (1991); 38 C.F.R. §
1.911(c)(1) (2003). So it, too, is referred to the RO for
any action deemed appropriate.
FINDING OF FACT
VA refunded an underpayment to the veteran of past-due
benefits in the sum of $15,487 that was created by an
adjustment in his disability percentage rating for the period
from December 1, 1996 through August 20, 2002.
CONCLUSION OF LAW
Past-due benefits owed the veteran that resulted from the
August 20, 2002 rating decision were accurately calculated.
38 U.S.C.A. § 1114 (codifying pertinent Public Laws in effect
from December 1, 1996 through November 30, 2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
Procedural Due Process, Preliminary Duties to Notify and
Assist
The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-
475, 114 Stat. 2096 (2000), was signed into law on November
9, 2000. It since has been codified at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). And the
implementing regulations are codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326 (2003).
The Act essentially eliminates the requirement that a
claimant submit evidence of a well-grounded claim, and
provides that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim-but is not required to
provide assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. It also requires VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant. See 38 U.S.C.A. § 5103(a); Charles
v. Principi, 16 Vet. App. 370, 373-74 (2002).
The VCAA, however, does not apply in certain types of cases.
There are a number of Court decisions that have addressed the
applicability or non-applicability of the VCAA to particular
types of claims. In Barger v. Principi, 16 Vet. App. 132
(2002), the Court held that the VCAA is not applicable to
cases involving a waiver of indebtedness, while in Smith v.
Gober, 14 Vet.App. 227 (2000), the Court found that the VCAA
did not affect the issue presented of whether a Federal
statute allows the payment of interest on past-due benefits.
The validity of a claimant's debt to the government is a
fundamental question that underlies waiver of indebtedness.
Here, the validity of a debt is the matter on appeal, though
in this case it is framed as the calculated amount of the
government's underpayment to the claimant. In any event, the
issue on appeal is one among that narrow class of cases where
VCAA's duty to notify and assist provisions have no
application.
Legal Criteria
Basic rates of disability compensation are determined each
year by Congress and are promulgated in Public Laws. They
are later codified at 38 U.S.C.A. § 1114. The pertinent
basic rates of disability compensation for the period that is
the subject of this appeal are set forth below.
DISABILITY COMPENSATION - BASIC RATES
PL 107-94
Effective 12/1/01
Dep
Status
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Vetera
n
103
199
306
439
625
790
995
1155
129
9
2163
V-S
343
488
687
864
108
1
1254
141
0
2287
V-S-1C
369
524
731
917
114
4
1325
149
0
2376
V-S-2C
388
549
763
955
118
8
1376
154
7
2440
V-S-3C
407
574
795
993
123
2
1427
160
4
2504
V-S-4C
426
599
827
103
1
127
6
1478
166
1
2568
Each add'l child
19
25
32
38
44
51
57
64
Each add'l
schoolchild
58
78
98
117
137
156
176
196
PL 106-413
Effective 12/1/00
Dep
Status
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Vetera
n
101
194
298
427
609
769
969
1125
126
6
2107
V-S
334
475
669
841
105
3
1221
137
4
2228
V-S-1C
360
510
713
893
111
4
1291
145
3
2315
V-S-2C
378
535
744
930
115
8
1341
150
9
2378
V-S-3C
396
560
775
967
120
2
1391
156
5
2441
V-S-4C
414
585
806
100
4
124
6
1441
162
1
2504
Each add'l child
18
25
31
37
44
50
56
63
Each add'l
schoolchild
57
76
96
115
134
153
172
192
PL 106-118
Effective 12/1/99
Dep
Status
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Vetera
n
98
188
288
413
589
743
937
1087
122
4
2036
V-S
323
459
647
813
101
8
1180
132
9
2153
V-S-1C
348
493
689
863
107
7
1247
140
4
2237
V-S-2C
366
517
719
899
111
9
1295
145
8
2298
V-S-3C
384
541
749
935
116
1
1343
151
2
2359
V-S-4C
402
565
779
971
120
3
1391
156
6
2420
Each add'l child
18
24
30
36
42
48
54
61
Each add'l
schoolchild
55
74
93
111
130
148
167
186
PL 105-368
Effective 12/1/98
Dep
Status
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Vetera
n
96
184
282
404
576
726
916
1062
119
6
1989
V-S
316
450
633
795
996
1154
129
9
2104
V-S-1C
341
482
674
844
105
3
1219
137
3
2186
V-S-2C
359
506
704
880
109
5
1267
142
7
2246
V-S-3C
377
530
734
916
113
7
1315
148
1
2306
V-S-4C
395
554
764
952
117
9
1363
153
5
2366
Each add'l child
18
24
30
36
42
48
54
60
Each add'l
schoolchild
54
72
91
109
127
145
163
182
PL 105-98
Effective 12/1/97
Dep
Status
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Vetera
n
95
182
279
399
569
717
905
104
9
118
1
1964
V-S
313
444
626
785
984
114
0
128
3
2078
V-S-1C
337
477
666
834
104
1
120
5
135
6
2159
V-S-2C
355
501
696
870
108
3
125
3
141
0
2219
V-S-3C
373
525
726
906
112
5
130
1
146
4
2279
V-S-4C
391
549
756
942
116
7
134
9
151
8
2339
Each add'l child
18
24
30
36
42
48
54
60
Each add'l
schoolchild
54
72
90
108
126
144
162
180
PL 104-263
Effective 12/1/96
Dep
Status
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Vetera
n
94
179
274
391
558
703
887
102
8
115
7
1924
V-W
307
435
614
770
965
111
7
125
7
2036
V-W-1C
331
467
653
817
102
0
118
0
132
8
2115
V-W-2C
348
490
682
852
106
1
122
7
138
1
2174
V-W-3C
365
513
711
887
110
2
127
4
143
4
2233
V-W-4C
382
536
740
922
114
3
132
1
148
7
2292
Each add'l child
17
23
29
35
41
47
53
59
Each add'l
schoolchild
53
70
88
106
123
141
159
177
Regardless of VA regulations concerning effective dates of
awards, and except as provided in paragraph (c) of this
section, payment of monetary benefits based on original,
reopened, or increased awards of compensation, pension,
dependency and indemnity compensation, or a monetary
allowance under 38 U.S.C. chapter 18 for an individual who
is a child of a Vietnam veteran may not be made for any
period prior to the first day of the calendar month
following the month in which the award became effective.
But beneficiaries will be deemed to be in receipt of
monetary benefits during the period between the effective
date of the award and the date payment commences for the
purpose of all laws administered by VA, except that nothing
in this section will be construed as preventing the receipt
of retired or retirement pay prior to the effective date of
waiver of such pay in accordance with 38 U.S.C. 5305.
38 C.F.R. § 3.31.
Analysis
As already mentioned, an August 20, 2002 RO rating decision
implemented an order of the Court by restoring a 70 percent
schedular disability evaluation for the veteran's PTSD -
retroactively effective from November 7, 1996 through
May 26, 1998.
An October 2002 letter pertains to the RO's audit of the
veteran's account for the period from December 1, 1996
through August 20, 2002. It was determined he was due
benefits totaling $126,030.67 and that he had been paid
benefits totaling $110,543.67. So considering the
difference, VA determined he was due $15,487. And after
subtracting attorney's fees of $3,097.40, he was refunded
$12,389.60.
The veteran is not disputing the amount subtracted for
attorney's fees.
Monetary benefits payable for percentage ratings assigned for
various levels of disability, from 10 to 100 percent, are set
forth above in the legal criteria section of this decision.
The Board has reviewed the RO's audit specifying the monetary
amounts paid for the veteran's disability from December 1,
1996 through May 26, 1998, at both the 30 percent level and
70 percent level. The monetary amounts specified agree with
the sums of money that were supposed to be paid at those
levels during the time frame in question. As well, the
monetary amounts specified agree with the sums of money that
were supposed to be paid at the 100 percent level from June
1, 1998 through August 20, 2002.
The RO accurately calculated the amount of past-due benefits
owed the veteran. There is no legal basis for granting
additional compensation payments for the time frame that is
the subject of this appeal.
ORDER
VA accurately calculated past-due benefits, and the appeal is
denied.
____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs